• Appeal from final decision under section 45 granted
  • July 20, 2017 | Authors: Chantal Saunders; Adrian J. Howard
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Appeal from final decision under section 45 granted

    Torres v. Barrette Legal Inc., 2017 FC 552

    The Federal Court granted an appeal of the Registrar's decision ordering that the trademark TORRES 5 be expunged from the Register pursuant to section 45 of the Trademarks Act.

    The Applicant's representative for service had received 11 section 45 notices trademarks, but did not receive a notice with respect to the TORRES 5 trademark. The Registrar then sent a notice advising that, by reason of the failure to file evidence, TORRES 5 was to be expunged from the Register unless an appeal was filed. The Applicant's request for a retroactive extension of time to submit evidence was denied since the Registrar was functus officio and had no authority to grant such a request after issuance of the final decision under section 45 of the Act.

    On appeal, the Court found that the Applicant filed sufficient evidence demonstrating use, as defined by sections 2 and 4 of the Act, within the relevant period, to maintain the registration for the TORRES 5 trademark.